BOARD DATE: 14 September 2017 DOCKET NUMBER: AR20160002001 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ___x_____ __x______ __x___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 14 September 2017 DOCKET NUMBER: AR20160002001 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending item 18 of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 7 May 1990 by adding the entry "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 780718–870521." 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading his under other than honorable conditions discharge or granting a personal appearance before the Board. ___________x________________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 14 September 2017 DOCKET NUMBER: AR20160002001 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect: * correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 7 May 1990 to show a period of honorable service * an upgrade of his under other than honorable conditions (UOTHC) discharge * a personal hearing before the Board 2. The applicant states, in effect, his last enlistment was on 4 August 1989. From 17 July 1978 through 3 August 1990 (sic), his time was honorable. a. He received only one DD Form 214 for the time in which he served. His service from August 1989 through May 1990 was UOTHC. He is in the process of paying back his military leave and getting a retirement estimate. In order to get this done, he will need his DD Form 214 changed to show his service was characterized as honorable or under honorable conditions (general). b. During his military career, he was depressed due to marital issues and his child was always sick and under a doctor's care at least two to three times per week. He requested a hardship discharge, but his request was never acted on. He was told his hardship discharge request would be disapproved and he would not be able to get out of the Army. c. He has been employed since getting out of the military. He worked at the following positions: security guard, apartment rental clerk, front desk clerk, book keeper, truck driver, and warehouse laborer. 3. The applicant provides no additional evidence in support of his request. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 18 July 1978. 3. The applicant's record contains a DA Form 4126-R (Bar to Reenlistment Certificate), dated 16 November 1989, which shows he accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on: * 17 June 1989, for violating Article 92 of the UCMJ; specifically, for failure to obey a lawful general regulation, wrongfully failing to take his common task test * 24 August 1989, for violating Article 86 of the UCMJ; specifically, for failing to go to his appointed place of duty at the prescribed time * 17 October 1989, for violating Article 86 of the UCMJ; specifically, for failing to go to his appointed place of duty at the prescribed time 4. The applicant's discharge packet is not available for review; however, his record contains a DD Form 214. This form shows he was discharged on 7 May 1990 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He was discharged in the rank/grade of private/E-1, in lieu of trial by court-martial, and his service was characterized as UOTHC. Additionally, his DD Form 214 shows in: * item 12c (Net Active Service This Period), the entry "11 years, 9 months, and 20 days" * item 18 (Remarks), the entry "IMMEDIATE REENLISTMENTS THIS PERIOD: 780718-800702; 800703-830804; 830805-870521; 870522-900507" 5. The Army Discharge Review Board (ADRB) denied his request for an upgrade of his discharge on 8 March 1995. The ADRB noted the facts and circumstances of his separation were not in the file; however, the ADRB's case report shows he received additional NJP on 22 December 1988 for failing to obey a lawful order, and on 21 November 1989 for wrongfully possessing and using cocaine. REFERENCES: 1. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Army Regulation 635-5 (Personnel Separations – Separation Documents), in effect at the time, prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes the standardized policy for preparing and distributing the DD Form 214. It states the DD Form 214 provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. a. Paragraph 1-4b(5) of the regulation in effect at the time stated that a DD Form 214 would not be prepared for enlisted Soldiers discharged for immediate reenlistment in the Regular Army. b. Paragraph 2-4h(18) of the regulation currently in effect states that item 18 documents the remarks that are pertinent to the proper accounting of the separating Soldier's period of service. For Soldiers who have previously reenlisted without being issued a DD Form 214 and who are later separated with any characterization of service except "honorable," enter "CONTINUOUS HONORABLE ACTIVE SERVICE FROM" (first day of service which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment)." Then, enter the specific periods of reenlistments as prescribed above. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. DISCUSSION: 1. The applicant's request for correction of his DD Form 214 to show a period of honorable service, an upgrade of his UOTHC discharge, and a personal appearance before the Board was carefully considered. 2. The applicant enlisted in the Regular Army on 18 July 1978 and reenlisted on 3 July 1980, 5 August 1983, and 22 May 1987 without a break in service. Applicable regulations and policies state that separate DD Forms 214 were not authorized or issued when there was no break in service. 3. Prior to each reenlistment, the applicant was found to be fully eligible for further service, which indicates his service prior to his last reenlistment was considered to have been honorable. However, his service following his last reenlistment on 22 May 1987 was characterized as UOTHC. According to regulatory guidance, his service from 18 July 1978 through 21 May 1987 should be shown on his DD Form 214 as continuous active honorable service; however, it was not entered. 4. The applicant's record is void of the specific facts and circumstances surrounding his discharge. However, it appears he was charged with the commission of an offense(s) punishable under the UCMJ with a punitive discharge, after which he was discharged under the provisions of Army Regulation 635-200, chapter 10. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. 5. The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. In doing so, he waived his opportunity to appear before a court-martial. 6. It is also presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. Further, it is presumed his discharge accurately reflects his overall record of service during his enlistment. The characterization of service he received was commensurate with the authority for his discharge. Absent evidence to the contrary, regularity must be presumed in this case. 7. The applicant's request for a personal appearance hearing was carefully considered. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record is sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010236 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002001 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2